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HomeMy WebLinkAboutC-3135 - License Agreement for Wireless Modem Service/Computer Users (street light poles?)- A CORD ;' DATE (MWDD/YY) 10/14/99 PRODUCER WSSF ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Woodruff - Sawyer & Co. 220 Bush Street, 7th Floor San Francisco,CA 94104 -0000 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANIES AFFORDING COVERAGE COMPANY A Chubb /Great Northern Insurance Co. 415 -391 -2141 INSURED 007815 Metricom Inc. COMPANY B Chubb/Federal Ins. Co. 980 University Avenue Los Gatos, CA 95032 -2375 COMPANY C COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POLICYEFFECTIVE .,ATE (MMIDOM/) POLICYEXPIRATON DATE I,MWDDM) LIMITS GENERAL LIABILITY GENERAL AGGREGATE S 2TUUUW , COMMERCIAL GENERAL LIABILITY PRODUCTS - COMPIOP AGG $ 1,000,000 A CLAIMS MADE r[7� OCCUR 35291948 1 09/30/99 09/30/00 it PERSONAL BADVINJ URY $ 1,000,00 OWNER'S& CONTRACTOR'SPROT _ EACH OCCURRENCE $ 1,000,0 FIRE DAMAGE (Any one fire) S 110001000 Ll MED EXP(My one Person) $ 1"W AUTOMOBILE LIABILITY ✓; ANYAUTO COMBINED SINGLE LIMIT E 1,000,000 B ❑ !�� ALL OWNED AUTOS SCHEDULED AUTOS 73164541 09/30/99 09/30/00 BODILY INJURY (Per Person) $ J �11 L- HIREDAUTOS NON -OWNED AUTOS BODILY INJURY oi (Per aodenl) $ _. H PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANYAUTO OTHER THAN AUTO ONLY: - J EACH ACCIDENT S AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE $ s , B UMBRELLA FORM —; 79072375 _ 09/30/99 09/30/00 AGGREGATE $ r OTHER THAN UMBRELLA FORM S WORKERS COMPENSATION AND EMPLOYERS' LIABILITY TORY LIMITS ER EL EACH ACCIDENT $ THE PROPMETOPJ INCL PARTNERS/EXECUTIVE EL DISEASE - POLICY LIMIT $ EL DISEASE - EA EMPLOYEE I $ OFFICERS ARE: EXCL UTHEK DESCRIPTION OF PERAT ATON WL ITEM RE: Municipality Agreement No. 594: City of Newport Beach, its council members, officers & employees are included as additional insureds under general liability as per form 80 -02 -2373 and under auto as per form CA 0001, page 2 of 9 attached. Day Notice For Non-Payment of remium SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE City of Newport Beach Attn: City Manager 3300 Newport Beach Boulevardv EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL NI{I XL* K%:X.MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, lOYO��YO 7�YYYX Newport Beach , CA 92658 -0000 _YYyyyK}X�¢lLy- AUTX REP_ NTATIV i • Lability Insurance • Endorsement Policy Period SEPTEMBER 30, 1999 TO SEPTEMBER 30, 2000 Effective Date SEPTMVfBER 30,1999 Policy Number 3529 -19-48 Insured METRICOM, ING Name of Company GREATNORTE3KRN INSURANCE COMPANY Date Issued SEPTEMBER 30, 1999 This Endorsement applies to the following forms: GENERAL LIABILITY The WHO IS INSURED provision is amended to include as an insured any person or organization, but only with respect to liability arising out of the ownership, maintenance or use of that part of the premises leased to you for the sole purpose of installing and maintaining Miwcell Radios or Wined Access Points. BUT No such person or organization is an insured with respect to: • Any occurrence which takes place after you cease to occupy the premises; • Structural altemations, new construction, or demolition operations performed by or on behalf of the person or organization; • Bodily injury, property damage, advertising injury or personal injury arising out of the sole negligence of the lessor. Coverage afforded to the Additional Insured is primary and any other insurance maintained by the Additional Insured shall be considered excess of this insurance but only in regards to Metricom's operation of Microcell Radios or Wired Access Points. We waive any right of recovery we may have against the designated person or organization because of payments we make for injury or damage arising out of your ongoing operations or done under a contract with that person or organization and included in the products- completed operations hazard. In the event that this policy is cancelled, we will provide the additional insured 30 days notice. All other terms and conditions remain unchanged Liability Insurance Additional Insured Lessor Cell Site Premises Endorsement last page Form 80-02 -2373 (Ed. 09-99) Endorsement Page t permission of its owner as a teoorary substitute for a covered "auto" you own that is out of service because of its: a. Breakdown; b. Repair; c. Servicing; d. "Loss "; or e. Destruction. SECTION II— LIABILITY COVERAGE A. COVERAGE We will pay all sums an "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of a covered "auto." We will also pay all sums an "insured" legally must pay as a "covered pollution cost or expense" to which this insurance applies, caused by an "accident" and resulting from the ownership, maintenance or use of covered "autos." However, we will' only pay for the "covered pollution cost or expense" if there is either "bodily injury" or "property damage" to which this insurance applies that is caused by the same "acci- dent." We have the right and duty to defend any "insured" against a "suit" asking for such damages or a "cov- ered pollution cost or expense." However, we have no duty to defend any "insured" against a "suit" seeking damages for "bodily injury" or "property damage" or a "covered pollution cost or expense" to which this insurance does not apply. We may inves- tigate and settle any claim or "suit" as we consider appropriate. Our duty to defend or settle ends when the Liability Coverage Limit of Insurance has been exhausted by payment of judgments or settlements. 1. WHO IS AN INSURED The following are "insureds ": a. You for any covered "auto." b. Anyone else while using with your permission a covered "auto" you own, hire or borrow except: (1) The owner or anyone else from whom you hire or borrow a covered "auto." This exception does not apply if the covered "auto" is a "trailer" connected to a cov- ered "auto" you own. (2) Your employee if the covered "auto" is owned by that employee or a member of his or her household. (3) Someone using a covered "auto" while he or she is working in a business of selling, servicing, repairing, parking or storing "autos" unless that business is yours. nersTlessee or borrower or any of their employees, while moving property to or from a covered "auto." (5) A partner of yours for a covered "auto owned by him or her or a member of his or her household. c. Anyone liable for the conduct of an "insured" described above but only to the extent of that liability. 2. COVERAGE EXTENSIONS a. Supplementary Payments. In addition to the Limit of Insurance, we will pay for the "insured ": (1) All expenses we incur. (2) Up to $250 for cost of bail bonds (includ- ing bonds for related traffic law violations) required because of an "accident" we cover. We do not have to furnish these bonds. (3) The cost of bonds to release attachments in any "suit" we defend, but only for bond amounts within our Limit of Insurance. (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earning up to $100 a day because of time off from work. (5) All costs taxed against the "insured" in any "suit" we defend. (6) All interest on the full amount of any judgment that accrues after entry of the judgment in any "suit" we defend, but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance. b. Out -of -State Coverage Extensions. While a covered "auto" is away from the state where it is licensed we will: (1) Increase the Limit of Insurance for Liabil- ity Coverage to meet the limits specified by a compulsory or financial responsibil- ity law of the jurisdiction where the cov- ered "auto" is being used. This extension does not apply to the limit or limits spec- ified by any law governing motor carriers of passengers or property. (2) Provide the minimum amounts and types of other coverages, such as no- fault, required of out-of -state vehicles by the jurisdiction where the covered "auto" is being used. We will not pay anyone more than once for the same elements of loss because of these extensions. B. EXCLUSIONS (4) Anyone other than your employees, part- This insurance does not apply to any of the following: CA 194 (12 -93) Page 2 of 9 Copyright, Insurance Services Office, Inc, 1993, 1994 CA 00 01 12 93 PRODUCER ABD Technology ABD Ins. and Financial Services 301 Island Parkway, Suite 100 Belmont, CA 94002 -4110 Metricom, Inc. 980 University Ave. Los Gatos, CA 95030 ATE (MMIDD/YY( 10/01/99 ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. COMPANY AThe American Ins.Co. (Firemans Fund) COMPANY B COMPANY C COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. L I TYPE OF INSURANCE POLICY NUMBER I DATE (MM DDIYY(E P ATE MM DDIYY) I LIMITS ;IAL GENERAL LIABILITY HS MADE D OCCUR S CONTRACTOR'S PROT DMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIREDAUTOS NONOVWEDAUTOS AGE LIABILITY ANY AUTO 'SS LIABILITY UMBRELLA FORM GENERAL AGGREGATE IS S ADV SINGLE LIMIT DAMAGE A WORKERS COMPENSATION AND I DWC80824129 09/30/99 109/30/00 X I STATUTORY LIMITS EMPLOYERS' LIABILITY EACHACCIDENT E1 OOO OOO THE PROPRIETOR/ PARTNERSIEXECUTNE X INCL DISEASE -POLICY LIMIT Sl O O O 000 OFFICERS ARE: EXCL DISEASE-EACH EMPLOYEE 31 000 000 OTNER DESCRIPTION OF OPERATIONSILOCA TIONSNEHICLESISPECIAL ITEMS City of Newport Beach City Manager 3300 Newport Beach Blvd Newport Beach, CA 92658 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY �' -3/3 A CORD DATE (MWDDYY) 09/30/98 PRODUCER WSSF ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE Woodruff - Sawyer & Co. HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 220 Bush Street, 7th Floor San Francisco,CA 94104 -0000 COMPANIES AFFORDING COVERAGE 415- 391 -2141 COMPANY A Chubb/VigilantInsurance Co. INSURED COMPANY Metricom, Inc. B Chubb/Federal Insurance Co. 980 University Avenue Los Gatos CA 95032 -2375 COMPANY C St. Paul Guardian Insurance Co. COMPANY D THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR TYPE OF INSURANCE POLICY NUMBER POUCYEFFECTIVE DATE(MIWDD/YY) POUCYEXPIRATION DATE(MWDD/YY) LIMITS GENERAL LIABILITY GENERAL AGGREGATE S 1,000,000 COMMERCIAL GENERAL LIABILITY PRODUCTS- COMP /OP AGG $ f f A �. CLAIMS MADE �✓ OCCUR 35291948 09/30/98 09/30/99 PERSONAL & ADV INJURY § OWNER'S& CONTRACTOR'S PROT EACH OCCURRENCE $ FIRE DAMAGE (Any one fire) $---T1T0U1AffV MED EXP (Any one person) $ f AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT S 1,000,000 ANY AUTO ALL OWNED AUTOS INJURY BODILY § $ SCHEDULED AUTOS 73164541 09/30/98 09/30/99 (Per person) -/ ❑ HIRED AUTOS BODILY INJURY $ FV NON -OWNED AUTOS (Per accident) PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ ANYAUTO OTHERTHAN AUTO ONLY : EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY EACH OCCURRENCE § 5,000,000 B V UMBRELLA FORM 79072375 09/30/98 09/30/99 AGGREGATE § 5,000,000 CI OTHER THAN UMBRELLA FORM j WORKERS COMPENSATION AND `� TORY LIMITS ER1'r rt }.'Ygs `;;� EMPLOYERS' LIABILITY ELFACHAC- S I,OOo,000 C THE PROPRIETOR/ ❑ INCL WVA9401217 09/30/98 09/30/99 EL DISEASE - POLICY LIMIT POLIC E 1,000,000 PARTNERS/EXE'UTIVE OFFICERS ARE EXCL EL DISEASE - FA EMPLOYEE $ 1,000,000 THER DESCRIPTION OF OPERATION&LOCATION3iEHICLMgPECLAL ITEMS City of Newport Beach is named additional insured per form #40020004 - Municipality Agreement No. 594. ay Notice For Non-Payment of reTmum SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED THE .� VB.EFyORE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL KYMMAJL 46 City of Newport Beach 30 Attn: City Manager DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3300 Newport Beach Boulevard Newport Beach, CA 92658 -0000 T RILED REPRESENTATIVE Loan No: 0 CHUBB & SON 0 19002 440 -02 -0004 Commercial ]Insurance Coverage Amendment effective 09/30/98 WHO IS INSURED: THE WHO IS INSURED PROVISION IS AMENDED TO INCLUDE AS AN ADDITIONAL INSURED THE PERSON OR ORGANIZATION DESIGNATED BELOW, INCLUDING ELECTED OR APPOINTED MEMBERS, OFFICERS AND EMPLOYEES, BUT ONLY WITH RESPECT TO THE COMMERCIAL GENERAL LIABILITY PROVIDED BY THIS POLICY AND ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED IN CONNECTION WITH THE AGREEMENT FOR WORK PERFORMED BETWEEN THE NAMED INSURED AND THE PERSON OR ORGANIZATION DESIGNATED BELOW. INSURED ANY MUNICIPALITY REQUIRED TO BE NAMED BY ANY CONTRACT OR AGREEMENT, PROVIDED SUCH CONTRACT OR AGREEMENT IS EXECUTED PRIOR TO ANY LOSS, AND ONLY AS RESPECTS OPERATIONS OF OR ON BEHALF OF THE NAMED INSURED. /EEC P.&. 1 of I terms and conditions remain unchanged. isured: METRICOM, INC. tuber: 3529 19 48 WOODRUFF- SAWYER & CO. SAN FRANCISCO CA 9 I rl� C1 F' COUNCIL MAR I O NT TO: MAYOR AND CITY COUNCIL MEMBERS FROM: PUBLIC WORKS DEPARTMENT SUBJECT: AGREEMENT WITH METRICOM, INC. RECOMMENDATIONS: ! ��o March 10, 1997 CITY COUNCIL AGENDA ITEM NO. 6 C- 3i3� Approve the attached Agreement with Metricom, Inc. and authorize the Mayor and City Clerk to execute the Agreement. DISCUSSION: Metricom, Inc. is a private company that offers a wireless modem service for computer • users that subscribe to their service. In order for their system to be effective they need to install approximately six (6) small radio units per square mile. These units are designed to be mounted on street light poles. Metricom proposes to install about 100 of these units in the City and compensate the City for the right to place them on City light poles. Staff has negotiated an agreement with Metricom with terms similar to those already approved by numerous cities. The agreement provides for an annual pole connection fee of $60 per unit plus a user fee of 5% of the monthly charge. This monthly rate is currently $30. Metricom has indicated that they expect to reach approximately one percent (1 %) of the population which would result in user fees of about $13,000 annually, plus $6,000 from pole connection fees. Metricom has also agreed to reimburse the City for staff time and initial costs related to the preparation and administration of the agreement. Attached are copies of the agreement as well as other materials describing the Metricom system. The agreement states that it is non - exclusive, which allows the City to execute similar agreements if other providers have similar systems that they want to install in a similar manner, Metricom units would be installed on only 100 of the 6000 light poles in the City so there would be plenty of other opportunities. 0 SUBJECT: AGREEMENT WITH METRICOM, INQ. March 10, 1997 Page 2 The agreement was reviewed by the Public Works Committee on October 11, 1996. After the November elections and new committee appointments, it was again reviewed by the Committee on March 10, 1997. The installation of the Metricom equipment on light poles in the public right of way will provide revenue for the City and an alternative to telephone modem connections for Internet and e-mail users within the City. It is recommended that the City Council approve this non - exclusive agreement with Metricom, Inc. Respectfully submitted, �wx PUBLIC WORKS DEPARTMENT Don Webb, Director by: _& Richard M. Edmonston Transportation & Development Services Manager Attachments • • NEWPORT BEACH LICENSE AGREEMENT THIS LICENSE AGREEMENT (the "LICENSE ") is dated as of March 10, 1997 and entered into by and between the CITY OF NEWPORT BEACH, a California Charter City and Municipal Corporation (the "City'), and METRICOM, INC., a Delaware corporation ( "Metricom "). RECITALS A. CITY OF NEWPORT BEACH owns and operates street light poles along streets and other public property within the City, and has the authority under its Charter and State law to regulate the terms and conditions for the attachment of wireless radio devices to its light poles. B. Metricom wishes to attach, install, operate, and maintain a wireless digital communications radio network on City owned street light poles for purposes of operating its RicochetTM wireless digital communications radio network (the "Network "). C. The City Council has determined that the attachment of wireless digital communication radios to City street light poles will not have an adverse aesthetic impact, will be a public benefit by providing additional options for citizens and visitors access to communication networks such as e-mail and the internet without cost to the City, and will not adversely affect the health, safety and welfare of the community. AGREEMENT Now, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: 1. DEFINITIONS. The following definitions shall apply generally to the provisions of this agreement: 1.1 Agency. "Agency" means any governmental or-quasi- governmental agency other than the City, including the FCC and the PUC. 1.2 City. "City' means the City of Newport Beach. 1.3 Effective Date. "Effective Date" means the date on which Metricom hangs its first Radio as provided below or, if later, the date on which this Agreement is approved by the City Council of Newport Beach and executed and delivered by the City to Metricom. 1.4 FCC. "FCC' means the Federal Communications Commission. 1 0 1.5 Gross Revenues. "Gross Revenues" means the gross dollar amount accrued on Metricom's books for Services provided to its customers with billing addresses in the City, excluding (i) the License Fee, if any, payable pursuant to 6 4 et seq. below; (ii) local, state, or federal taxes collected by Metricom that have been billed to the subscribers and separately stated on subscribers' bills; and (iii) revenue uncollectible from subscribers (i.e., bad debts) with billing addresses in the City that was previously included in Gross Revenues. 1.6 Laws. "Laws' means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements of the City or other governmental agency having joint or several jurisdiction over the parties to this Agreement, in effect either at the time of execution of this Agreement or at any time during the presence of Radios installed on City street light poles. 1.7 Metricom. "Metricom" means Metricom, Inc., a corporation duly organized and existing under the laws of the State of Delaware authorized to do business in the State of California, and its lawful successors, assigns, and transferees. 1.8 PUC. "PUC" means the California Public Utilities Commission 1.9 License. "License" means this nonexclusive License Agreement 1.10 Person. "Person" means an individual, a corporation, a limited liability company, a general or limited partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business entity or association. 1.11 Provision. "Provision" means any agreement, clause, condition, covenant, qualification, restriction, reservation, term, or other stipulation in this Agreement that defines or otherwise controls, establishes, or limits the performance required or permitted by any Party to this Agreement. All Provisions, whether covenants or conditions, shall be deemed to be both covenants and conditions. 1.12 Public Right of Way. "Public Right of Way" means in, upon, above, along, across, and over the public streets, roads, lanes, courts, ways, alleys, boulevards, and places, including all public utility easements and public service easements as the same now or may hereafter exist that are under the jurisdiction of the City. This term shall not include any property owned by any Person or Agency other 'r: E 0 than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. 1.13 Radio Month. "Radio Month" a calendar month during which a Radio occupies space on a City -owned pole or other City -owned property, even if such occupancy is less than the entire month. 1.14 Radio. 'Radio" means that wireless radio equipment utilizing Ricochet technology, whether referred to singly or collectively, certified by the FCC to be installed and operated by Metricom and more particularly depicted in Exhibit A to this Agreement 1.15 RicochetTM. "RicochetTm" or "RicochetTm MCDN" means Ricochet TM MicroCellular Digital Network, a wireless, microcellular digital radio communications network owned and operated by Metricom. 1.16 Services. "Services" means the Ricochet wireless digital communications services provided through Radios by Metricom to subscribers with billing addresses within the City. 2. TERM. The term of this Agreement shall commence on the Effective Date and shall expire on the date which completes five (5) years after the Effective Date, unless it is earlier terminated by either party in accordance with the provisions herein. The term of this Agreement may be renewed automatically for two (2) successive terms of five (5) years each, unless either Metricom or the City notifies the other party of its intention not to renew not less than thirty (30) calendar days prior to commencement of the relevant renewal term. Each renewal shall be made on the same terms and conditions as set forth herein, except that the Annual Fee shall be subject to adjustment as provided in §_4 below. 3. SCOPE of LICENSE. Any and all rights expressly granted to Metricom under this Agreement, which shall be exercised at Metricom's sole cost and expense, shall be subject to the prior and continuing right of the City under applicable Laws to use City street light poles exclusively or concurrently with any other Person or Persons and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title which may affect the Public Right of Way. Nothing in this Agreement shall be deemed to grant, convey, create, or vest in Metricom a perpetual real property interest in land, including any fee, leasehold interest, or easement. 3.1 Attachment to City -Owned Property. The City hereby authorizes Metricom to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace Radios in or on City street light poles, or similar lighting fixtures, to provide Services to Persons located within or without the limits of the City. 3 0 0 3.2 Attachment to Third -Party Property. Subject to obtaining the permission of the owner(s) of the affected property, the City agrees to permit Metricom, to the extent necessary, to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and replace such number of Radios in or on poles or other structures owned by other public utility companies, including SCE, or other property owners located within the Public Right of Way as may be permitted by the public utility company or property owner, as the case may be. Metricom shall furnish to the City documentation of such permission from the individual utility or property owner responsible. However, Metricom agrees to use City street light poles wherever possible. 3.3 No Interference. Except as permitted by applicable Laws, Metricom in the performance and exercise of its rights and obligations under this Agreement shall not interfere in any manner with the existence and operation of City street light poles or any public and private rights -of -way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, electroliers, cable television, and other telecommunications, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties. 3.4 Compliance with Laws. Metricom shall comply with all applicable Laws in the exercise and performance of its rights and obligations under this Agreement. 3.4.1 Construction Permits. Any and all construction work performed pursuant to the rights granted under this Agreement, including the installation, operation, maintenance, location, and attachment of the Radios shall be subject to the prior review and approval of City Public Works Department by means of submission of an encroachment permit application, payment of any applicable permitting fees, and the City's ordinary administrative review. The locations of Metricom's planned initial installation of Radios shall be identified as part of Metricom's application for an encroachment permit under this Section. The City reserves the right to refuse attachment to certain street light poles if necessary for aesthetic, or safety reasons. Metricom agrees to apply for and obtain all appropriate permits required by applicable Laws prior to the commencement of any work of in the Public Right of Way. After the initial deployment of the Radios, new attachments, removals, and relocations of Radios shall also be subject to the City's permitting process. If the location of any Radio is different from that applied for in the applicable permit, the 4 location of such Radio installed by Metricom or its designee shall be disclosed in writing to the City by Metricom within ten (10) days after its installation, removal, or relocation. 3.4.2 As -Built Drawings. Upon the completion of construction work, Metricom promptly shall furnish to the City, in hard copy and in Metricom's electronic format, suitable documentation showing the exact location of the Radios in the Public. 3.5 Modification of Service Voltage. The City reserves the right to modify the service voltage delivered to or at any street light pole or utility pole on which a Radio may be located. Metricom shall replace or modify any Radio that will be affected by such voltage modifications within thirty (30) days of receiving notice of voltage modifications. In the event that Metricom fails to replace or modify any Radio within the thirty-day notice period before the voltage modification, the City may disconnect any such Radio until Metricom performs and completes the necessary work and advises City accordingly. 3.6 Annual Business License. Metricom agrees to obtain an annual City business license prior to the Effective Date and maintain the same throughout the term of this Agreement. 4. FEES AND TAXES. Metricom shall be solely responsible for the payment of all lawful Fees and utility charges in connection with the exercise of Metricom's rights under this Agreement, including those set forth below. In consideration for this License, Metricom agrees to pay the City the following compensation: 4.1 License Fee. An amount equal to five percent (5 %) of Metricom's Gross Revenues ( "License Fee ") which amount shall be remitted to the City as follows: (a) The License Fee shall be due on or before the forty -fifth (45th) day after the end of each calendar quarter. (b) If License Fee is not paid by Metricom when due, then in addition to the License Fee, Metricom shall pay a late payment penalty in an amount equal ten percent (10 %) of the Fee that was not timely paid. If Metricom fails to pay delinquent fees within thirty days (30) of the date due, Metricom shall pay a second late payment penalty in an amount equal ten percent (10 %)of the Fee outstanding after such thirty day period. The second late payment penalty shall be in addition to the first late payment penalty, In addition, Metricom shall pay interest on all unpaid Fees at the rate of ten percent (10 %) per annum or the legal rate allowed, whichever is less, from the date the Fees were due and payable to the date actually paid. Metricom will be responsible for all billing and collection from all its customer accounts. (c) Metricom shall furnish to the City with each payment of 0 0 the License Fee a statement, executed by an authorized officer of Metricom or his or her designee, showing the amount of Gross Revenues for the period covered by the payment. If Metricom discovers that it has failed to pay the entire or correct amount of the License Fee, Metricom shall pay the difference to the City or make such other adjustment within fifteen (15) days of discovery of the error or determination of the correct amount. Any overpayment to the City through error or otherwise may, upon prior approval of City be offset against the next payment due from Metricom. Acceptance by the City of any payment due under this section shall not be deemed to be a waiver by the City of any breach of this Agreement occurring prior thereto, nor shall the acceptance by the City of any such payments preclude the City from later establishing that a larger amount was actually due or collecting any balance due to the City. 4.1.1 Accounting and Audit. Metricom shall keep accurate books of account at its principal office in Los Gatos or such other location of its choosing for the purpose of determining the amounts due to the City. The City may inspect Metricom's books of account at any time during regular business hours on five (5) days' prior written notice and may audit the books from time to time, but in each case only to the extent necessary to confirm the accuracy of payments due under this Agreement. The City shall bear the cost of any such audit, unless such audit reveals an underpayment to the City of more than five percent (5 %) of the License Fee which was due to the City for such calendar year. Once each calendar year the City may require an annual report from Metricom relating to its operations and revenues within the City. To the extent authorized by law, City agrees to hold in confidence any non - public information it learns from Metricom. 4.2 Annual Fee. In addition to the License Fee, Metricom shall pay an annual fee (the "Annual Fee') in the amount of Sixty Dollars ($60.00) for each City -owned street light pole or other similar structure upon which a Radio has been installed pursuant to this Agreement. The initial Annual Fee shall be due and payable not later than the date of installation of the first Radio on City -owned poles or other City - owned property under this Agreement (the "Installation Date') and shall be computed based upon the number of Radios Metricom estimates as of the Installation Date that it will install on City -owned poles or other City-owned property during the succeeding twelve (12) months. The Annual Fee for subsequent years shall be due and payable not later than thirty (30) days following each anniversary of the Installation Date and shall equal the total number of Radios then • • installed on City -owned poles or other City -owned property pursuant to this Agreement multiplied by the Annual Fee, adjusted for the Prior Year Adjustment, as described immediately below. The Prior Year Adjustment shall either increase or decrease a subsequent year's aggregate Annual Fee to account for the installation or removal of Radios during the prior year, and shall equal the difference between (i) the total number of Radios used to calculate the prior year's aggregate Annual Fee multiplied by twelve (12) and (ii) the actual number of Radio Months which occurred during such year, multiplied by one - twelfth of the Annual Fee. 4.2.1 CPI Adjustment. At the commencement of each renewal term, the Annual Fee with respect to such term shall be adjusted effective January 1st of the first year of such renewal term by a percentage amount equal to the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics, Consumer Price Index of all items, Base 1982 -1984, which occurred during the previous term or renewal term, as the case may be, for the Los Angeles- Anaheim - Riverside Consolidated Metropolitan Statistical Area. 4.3 RicochetTm Tradeout Option. Notwithstanding anything to the contrary in this Agreement, the City shall have the right to elect to receive one of the following tradeouts in lieu of the amount of the Annual Fee specified in connection with each such tradeout option: (a) up to fifty (50) subscriptions to use Metricom's RicochetTm Services in the City for so long as Metricom maintains Radios in use in the ratio specified below of City owned poles or other City owned property pursuant to this Agreement. Such option may be exercised by City in increments of one (1) subscription in lieu of the Annual Fee for one (1) Radio. Metricom shall provide such subscriptions at such time as Metricom is providing Services in the City, provided that prior to such service date City shall not be entitled to receive the Annual Fee or other compensation in lieu thereof. Metricom will not be required to pay the Annual Fee for the number of Radios installed on City owned poles or other City owned property equal to the number of subscriptions the City elects to receive as provided above. The number of Radios installed on City owned poles or other City owned property in excess of the number of subscriptions the City elects to receive shall be subject to the Annual Fee. City's use of the subscriptions shall be subject to Metricom's standard Ricochet""' Service terms and conditions. City shall be required to purchase at its VA 0 0 sole cost and expense any equipment and software required to use the RicochetTM Service; or (b) up to twenty (20) subscriptions to use Metricom's RicochetTM Services and the use of up to twenty (20) Metricom modems, for so long as Metricom maintains Radios in use on the appropriate number of City owned poles or other City owned property pursuant to this Agreement. Such option may be exercised by City in increments of two (2) subscriptions and two (2) modems in lieu of Annual Fees for five (5) Radios. Metricom shall provide such subscriptions and equipment at such time as Metricom is providing commercial service in the City, provided that prior to such service date City shall not be entitled to receive the Annual Fee or other compensation in lieu thereof. The number of Radios installed on City -owned poles or other City -owned property in excess of the number of subscriptions /modems the City elects to receive shall be subject to the Annual Fee. City's use of the modems and subscriptions shall be subject to the standard terms and conditions set forth in the terms and conditions packaged with the modems. City shall be required to return to Metricom any equipment provided to City upon termination of any free subscriptions in good condition, ordinary wear and tear excepted. 4.3.1 Timing of City's Election. City shall be required to make an election under this Section within thirty (30) days of the Effective Date, or each anniversary of the Effective Date, as the case may be. Such election shall be applicable for the longer of either the following one year period or until a subsequent election is made in accordance with the previous sentence. 4.3.2 License Restrictions. City shall use all subscriptions and equipment provided pursuant to this Section solely for its own use and shall not be entitled to resell, distribute, or otherwise permit the use of the same by any other party. 91 • • 4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at City's standard rates for all reasonable expenses relating to the preparation, issuance, and implementation of this Agreement, promptly upon receipt of bills, paid invoices, and such other documentation as Metricom shall reasonably require. The reimbursement provided for in this Section shall not replace or excuse Metricom from the payment of any applicable City permit fee for work undertaken in connection with this Agreement. 4.5 Most - Favored Nation Clause. Should Metricom after the parties' execution and delivery of this Agreement enter into a similar agreement with another municipality of the same size or smaller than the City in the Los Angeles Metropolitan Statistical Area which agreement contains financial benefits for such municipality which are substantially superior to those in this Agreement City shall have the right to request that Metricom modify this Agreement to incorporate the same or substantially similar superior benefits. 5. REMOVAL AND RELOCATION OF RADIOS. Metricom understands and acknowledges that City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes: (a) to facilitate or accommodate the construction, completion, repair, relocation, or maintenance of a City project; (b) because the Radio is interfering with or adversely affecting proper operation of City light poles, traffic signals, or other City facilities; (c) to protect or preserve the public health, safety, or welfare; or (d) a bonafide request from competitors or other businesses for same or similar installations on City of Newport Beach street light poles which, in the opinion of the City of Newport Beach would result in visual blight or other adverse public effects. If Metricom shall fail to relocate any Radios as requested by the City in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. 5.1 Metricom Desires Relocation. In the event Metricom desires to relocate any Radios from one City-owned pole or other property to another City-owned pole or other property, Metricom shall so advise City. City will use its best efforts to accommodate Metricom by making another functionally equivalent City-owned pole or other property available for use in accordance with and subject to the terms and conditions of this Agreement. M 5.2 Discontinuation of Service. Metricom agrees to keep the Radios in good, safe and operating condition. If any Radio subject to this Agreement is abandoned and no longer placed in service for a period -of six (6) months or more, Metricom promptly shall notify the City, and Metricom shall remove the abandoned Radio(s) at Metricom's sole cost and expense. If Metricom shall fail to remove the Radios as required, the City shall be entitled to remove the Radios at Metricom's sole cost and expense. 5.3 Damage to Right -of -Way. Whenever the removal or relocation of Radios is required under this Agreement, and such removal or relocation shall cause the Public Right of Way to be damaged, Metricom, at its sole cost and expense, shall promptly repair and return the Public Right of Way in which the Radios are located to a safe and satisfactory condition to the satisfaction of the City's Director of Public Works. If Metricom does not repair the site as just described, then the City shall have the option, upon fifteen (15) days' prior written notice to Metricom, to perform or cause to be performed such reasonable and necessary work on behalf of Metricom and to charge Metricom for the proposed costs to be incurred or the actual costs incurred by the City at City's standard rates. Upon the receipt of a demand for payment by the City, Metricom shall reimburse the City for such costs. 6. INDEMNIFICATION, WAIVER, AND BOND. Metricom agrees to Indemnify, defend (with counsel reasonably acceptable to the City), protect, and hold harmless the City, its council members, officers, employees, and agents from and against any and all claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, all costs and cleanup actions of any kind, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses ") arising, directly or indirectly, in whole or in part, out of the activities or facilities described in this Agreement, except to the extent arising from or caused by the negligence or willful misconduct of the City, its council members, officers, employees, agents, or contractors. 6.1 Waiver of Breach. The waiver by the City of any breach or violation of any Provision of this Agreement by Metricom shall not be deemed to be a waiver or a continuing waiver by the City of any subsequent breach or violation of the same or any other Provision of this Agreement by Metricom. 6.2 Waiver of Claims. Metricom waives any and all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any Radio or any loss or degradation of the Services as a result of a sudden or gradual loss or change of electrical power caused by, among others events, an 10 9 0 Act of God, an event or occurrence which is beyond the reasonable control of the City, a power outage, a lightning strike, or occasioned by the installation, maintenance, replacement or relocation of any City -owned facility to which such Radio is attached. 6.3 Limitation of City's Liability. The City shall be liable only for the cost of repair to damaged Radios arising from the negligence or willful misconduct of City or its employees or agents, and the City shall not be responsible for any damages, losses, or liability of any kind occurring by reason of anything done or omitted to be done by the City or by any third party, including damages, losses, or liability arising from the issuance or approval by the City of a permit to any third party or any interruption in Services. 6.4 Bond or Other Security. Prior to the commencement of any work under this Agreement Metricom shall furnish or cause to be furnished to City a good and sufficient bond, in a form to be approved by the City entitled Surety Bond, in the amount of Two Thousand Five Hundred Dollars ($2,500), or such other comparable security instrument as may be approved by the City's attorney or risk manager, securing the faithful performance by Metricom of all of the work, construction, installation, and removals required to be performed by Metricom under this Agreement within the time periods set forth hereunder. 7. INSURANCE. Metricom shall obtain and maintain at all times during the term of this Agreement (including the period between the expiration hereof and Metricom's removal of its Radios or other equipment from the Public Right of Way) comprehensive general liability insurance and comprehensive automobile liability insurance protecting Metricom in an amount not less than One Million Dollars ($1,000,000) per occurrence (combined single limit), including bodily injury and property damage, or if in the aggregate, an amount not less than Two Million Dollars ($2,000,000),. Such insurance policies shall name the City, its council members, officers, employees, and agents as additional insureds as respects any liability arising out of Metricom's performance of work under this Agreement. Coverage shall be provided in accordance with the limits specified and the Provisions indicated herein. Claims -made policies are not acceptable. When an umbrella or excess coverage is in effect, coverage shall be provided in following form. Such insurance shall not be canceled or materially altered to reduce coverage until the City has received at least thirty (30) days' advance written notice of such cancellation or change. Metricom shall be responsible for notifying the City of such change or cancellation. 7.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, Metricom shall file with the City the required original certificate(s) of insurance 11 with endorsements, subject to the City's prior approval, which shall clearly state all of the following: (a) policy number; name of insurance company; name, address, and telephone number of the agent or authorized representative; name, address, and telephone number of insured; project name and address; policy expiration date; and specific coverage amounts; (b) that thirty (30) days' prior notice of cancellation is unqualified as to the acceptance of liability for failure to notify the City; and (c) that Metricom's insurance is primary as respects any other valid or collectible insurance that the City may possess, including any self- insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance. The certificate(s) of insurance with endorsements and notices shall be mailed to the City as the address specified in this Agreement. 7.2 Workers' Compensation Insurance. Metricom shall obtain and maintain at all times during the term or any renewal term of this Agreement statutory workers' compensation and employer's liability insurance in an amount not less than Five Hundred Thousand Dollars ($500,000) or such other amounts as required by Califomia law, and shall furnish the City with a certificate showing proof of such coverage. 7.3 Insurer Criteria. Any insurance provider of Metricom shall be admitted and authorized to do business in Califomia and shall be rated at least A:X in A.M. Best & Company's Insurance Guide. Insurance policies and certificates issued by non - admitted insurance companies are not acceptable. 7.4 Severability of Interest. Prior to the execution of this Agreement, any deductibles or self- insured retentions must be stated on the certificate(s) of insurance, which shall be sent to and approved by the City. "Cross liability," "severability of interest," or "separation of insureds" clauses shall be made a part of the comprehensive general liability and comprehensive automobile liability policies. 12 0 0 7.5 Contractors' and Subcontractors' Insurance. Metricom shall require that all contractors and subcontractors obtain insurance meeting the criteria set forth herein and shall furnish to the City copies of all certificates evidencing such policies of insurance. 7.6 Insurance and Indemnification Obligation. Metricom's compliance with the insurance requirements herein shall not excuse, replace, or otherwise affect Metricom's duty to indemnify and defend the City pursuant to this Agreement. 8. NOTICES. All notices which shall or may be given pursuant to this Agreement shall be in writing and delivered personally or transmitted (a) through the United States mail, by registered or certified mail, postage prepaid; (b) by means of prepaid overnight delivery service; or (c) by facsimile transmission, if a hard copy of the same is followed by delivery through the U. S. mail or by overnight delivery service as just described, addressed as follows: if to the City: CITY OF Newport Beach Attn: Kevin Murphy, City Manager 3300 Newport Beach Boulevard Newport Beach, CA 92658 -8915 if to Metricom: METRICOM, INC. Attn: Property Manager 980 University Avenue Los Gatos, CA 95030 Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next day in the case of overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 9. TERMINATION. This Agreement may be terminated by either party upon thirty (30) days' prior written notice to the other party upon a default of any material covenant or term hereof by such other party, which default is not cured within thirty (30) days of receipt of written notice of default (or, if such default is not curable within thirty (30) days, if the defaulting parry fails to commence such cure within thirty (30) days or fails thereafter diligently to prosecute such cure to completion), provided that the cure period for any monetary default shall be ten (10) days from receipt of notice. As used in this section, the 13 • • term default shall include, but not be limited to, Metricom's failure (i) to comply with the restrictions established in §3, (ii) timely to pay any sums owing to the City under §4, and (iii) to maintain, deploy, relocate, or remove its Radios as required 10. ASSIGNMENT. This Agreement shall not be assigned by Metricom without the express written consent of the City, which consent shall not be unreasonably withheld, conditioned, or delayed. Any attempted assignment in violation of this Section shall be void. Notwithstanding the foregoing, the transfer of the rights and obligations of Metricom hereunder to a parent, subsidiary, or financially viable affiliate of Metricom or to any successor -in- interest or entity acquiring all or substantially all of Metricom's outstanding voting stock or assets shall not be deemed an assignment or transfer for the purposes of this Agreement, provided that (i) any such transferee will have a financial strength after the proposed transfer at least equal to that of Metricom prior to the transfer, (ii) any such transferee assumes all the obligations of Metricom hereunder, and (iii) Metricom shall not be released from the obligations of this Agreement by virtue of such transfer. If such criteria are satisfied, it shall not be deemed reasonable for the City to withhold its consent to the proposed transfer, unless the proposed transferee has a record of performance under similar agreements which is unacceptable to the City under a reasonable standard of evaluation. Lack of prior specific experience in administering a system providing the Services described in this Agreement shall not, by itself, be deemed a reasonable basis for refusing or conditioning the City's consent. Metricom shall give to the City thirty (30) days' prior written notice of any proposed transfer. In the case of any proposed transfer for which the City's consent is required hereunder, Metricom agrees to reimburse the City for its reasonable expenses incurred in reviewing such transfer proposal. 11. MISCELLANEOUS PROVISIONS. The provisions which follow shall apply generally to the obligations of the parties under this Agreement 11.1 Nonexclusive Use. Metricom understands that this Agreement does not provide Metricom with exclusive use of any City -owned poles or property and that City shall have the right to permit other providers of telecommunications services to install equipment or devices in the Public Right of Way; however, City shall endeavor promptly to notify Metricom of the receipt of a proposal for the installation of communications equipment or devices on City's utility street light poles, regardless of whether a license is required by the FCC for the operation thereof. 11.2 Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by both parties . 11.3 Severability of Provisions. If any one or more of the Provisions of this Agreement shall be held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such Provision(s) shall be deemed severable from the remaining 14 0 0 Provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement. 11.4 All -Hours Contact. Metricom shall be available to the staff employees of any City department having jurisdiction over Metricom's activities twenty -four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Radios. The City may contact by telephone the network control center operator at telephone number (800) 556 -6123 regarding such problems or complaints. 11.5 Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in accordance with the laws of the State of Califomia. In the event that suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California, County of Orange, or in the United States District Court, Central District of California in the County of Orange. 11.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including reasonable attorneys' fees. 11.7 Exhibits. All exhibits referred to in this Agreement and any addenda, attachments, and schedules which may from time to time be referred to in any duly executed amendment to this Agreement are by such reference incorporated into Agreement and shall be deemed a part of this Agreement. 11.8 Successors and Assigns. This Agreement is binding upon the successors and assigns of the parties hereto. 11.9 Rules, Regulations, and Specifications. Metricom acknowledges that the City may develop rules, regulations, and specifications, including a general ordinance or other regulation governing wireless telecommunications in the City for the attachment, installation, and removal of Radios and any similar purpose devices on the City - owned facilities, including poles, and that such Regulations, when finalized, shall govern Metricom's activities hereunder as if they had been in effect at the time this Agreement was executed by the City; provided, however, that in no event shall such Regulations materially interfere with or affect Metricom's right to install Radios or Metricom's ability to transmit or receive radio signals from Radios installed pursuant to and in accordance with this Agreement or materially increase Metricom's obligations hereunder. 15 0 • 11.10 Advice of Displacement. To the extent the City has actual knowledge thereof, the City will attempt to inform Metricom of the displacement of any pole on which any Radio is located. 11.11 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 11.12 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written. City: CITY OF NEWPORT BEACH, a California municipal corporation M Its: Metricom: METRICOM, INC., a Delaw a corporation By: Williawt D w. vu t, (name typed] Its: 0, n ie f Timg.-t.c Al 0+fitc y F AcatXdebbie\ag\metdoom.doc 0 &19-97 16 v . i + � 4 u J W t t' y � � .AF> o- �� W y' 1M �i,�v •.i� � A no A y yl � � 4. ° P tri� �•.. Y { R }+ m� +• �'x i J � �. T a x¢"��1. y, QpT >. pdi �+MS Y a f Ricochet •Bringing You A World Without Wires • • I I' The Ricochet wireless gateway service allows subscribers to maximize their productivity when they're away from the office. Subscribers get all the benefits of wired phone modem performance — without the wires, including the ability to: • check e-mail remotely • send faxes • access the Internet • communicate peer -to -peer • check prices and product information • check inventory • access LANs • place purchase orders • access online services • The fast, affordable wireless gateway service for mobile professionals Tday's office extends beyond walls. People are on the move. They're working at home, at libraries, at customer sites, in hotel rooms and airports. But to work effectively, mobile employees need to be able to access information easily —without being tethered to a phone jack. With the Ricochet wireless data service, mobile professionals don't tie up the phone lines at a customer site, or deal with the complication and expense of connecting through a hotel telephone switchboard. Ricochet turns any computer into a virtual office by connecting subscribers to the vital information they need. The Ricochet wireless modem plugs directly into a desktop, laptop or PDA and con- nects subscribers to the network, giving them access to their corporate databases, files, and on -line information. Wherever they are. Whenever they need it. n • 0 Ricochet Flexible Network The Ricochet service operates over Metricom's Ricochet wireless network which sends data packets across a network of intelligent radio nodes. The network operates in the license -free (902 -928 MHz) portion of the radio spectrum and employs a unique patented mesh network technology. Easily deployed pole top radios form the building blocks for the network This flexible technology means that the Ricochet service can be expanded or changed to meet business productivity requirements. Fast Ricochet transmits data five to ten times faster than other wireless data communications services, with user throughput of up to 28.8 kbps. Affordable Ricochet is the lowest cost wireless data service available. One flat monthly rate includes unlimited Internet usage. The unique architecture of the Ricochet network enables Metricom to offer this technology at such an affordable price. 0 0 Because the intelligent pole top radios are small and inexpensive, Metricom can easily deploy the network on existing pole tops and buildings, without buying real estate or erecting costly towers. Compatible The Ricochet network imple- ments the industry standard AT command set as well as SLIP and PPP for direct access to the Internet or any private TCP /IP based LAN. Ricochet's wireless modem is compatible with all Apple, MS- DOS, and IBM platforms and the growing number of PDA devices such as Applee Newtori and HP IOOLXnv. And, the Ricochet wireless modem works with most existing software — simply connect the modem by cable to a computer or PDA serial port to read and send e-mail, access on -line services for research, trade stock, or surf the Net. Private With the Ricochet service, data transmission is private because of the utilization of spread spectrum technology. Ricochet's innovative frequency- hopping network technology uses data packets transmitted at low power on randomly selected channels throughout the license -free band of the radio spectrum. Proven Technology Metricom's Ricochet wireless technology has already proven itself in the electric utility industry. Metricom's UtfliNet- data network has set new standards in cost - effective wireless solutions for the sophisticated communication needs of utility and industrial companies. UtiliNet, and Metricom are registered trademarks, and Ricochet is a trademark of Metricom, Inc. All other trademarks are the property of their respective owners. FS 1195 Product Specifications Modem Size: 7 5/8" x 2 3/8" x 5/8" weight: 13 ounces Battery NiMH 6 hours typical life, depending on usage. One battery included with modem. AC Adapter 100- 125VAC, 50 -BDH2, 0.22A Serial Connection RS -232 Serial Protocols AT, PPP, SLIP, Star Mode Speed User throughput of up to 28.8 kbps depending upon software, hardware, and applications used, 100 kbps raw RF data rate, serial port selectable from 1200 bps to 115.2 kbps. Compatibility IBM PC and MS -DOS compati- ble, Apple Macintosh desktop, PowerBook- and Newton, and PDA's with serial ports. One serial cable included with modem. Ricochet Service Cost Flat -rate monthly fee is based on desired features, includes unlimited Internet usage. Coverage Extended campuses, surrounding neighborhoods, and greater metropolitan regions. Accessories Spare battery Desktop recharges Serial cable for either Mac or PC Replacement antenna FCC Approval The Ricochet wireless modem is FCC certified and complies with Part 15 of the FCC rules. �� Metricom, Metricom. Inc. 980 University Avenue Los Gatos, California 95030 -2375 Tel. 800-434 -4460 www.ricochet.net infoOricochel.net 0 icochet: Safety First etricom's innovative Ricochet service is based on an interconnected mesh network architecture that transmits digital packets of data across a wireless network of intelligent "poletop" radios attached to buildings, streetlights and utility poles. Typical spacing between radios is approximately a quarter to a half mile; each radio in the network can originate messages, and send and receive information. Metricom's poletop radios have undergone testing by an independent third party to ensure that they meet current and proposed emission standards. The poletops operate at less than one watt of power at a frequency of 902 -928 MHz. According to a February 1995 report by Inchcape Testing Services of Belmont, California, the levels of RF energy emitted by the Metricom poletops were substantially below the recom- mended levels of exposure delineated by ANSI standard C95.1. The ANSI standard imposes a maximum power density limit of 610,000 x 10-6 measured as isW /cm2. Ricochet devices registered a reading 34 x 10 -6 mW /cm2 in this test. • E The Metricom poletop radios are certified to meet stringent FCC requirements. The RF energy emitted from a baby monitor, at a one foot distance, is almost twice that of a Metricom Network radio at 50 feet; the typical distance of any Metricom Network radio to a nearby house is 50 -100 feet (the energy of a radio wave decreases with the distance from the source). All of Metricom's products and services have been designed with the safety of customers in mind. The company remains committed to maintaining this high level of safety in the future by ensuring that its network devices comply with any revisions to the current standard, particularly as the results of new research studies come to light. Metricom is a registered trademark and Ricochet is a trademark of Metricom, Inc. • • 900 x104 (RF Emissions) 64 34 Metricom Baby Cordless Garage Poletop Monitor Telephone Door Radio Opener Third parry testing indicates that the radio frequency (RF) energy emitted by the transmitters and modems used in Metricom's Ricochet wireless network are substantially below established safety levels. Over the last few years, there has been a dramatic increase in the use of wireless communications throughout business and industry. The most prominent example, of course, has been the cellular telephone. But many other applications —such as wireless data networking, for example —are increasing in use as mobile computing and remote access technology come of age. In the cellular telephone arena, public concern has arisen regarding the radiation that fixed structures such as radio and broadcast towers emit, and the effects this radiation could potentially have on users over an extended period of time. The principal issues focus on the distribution of power and radio frequencies (RFs) that are absorbed by persons with sustained exposure to such structures. As one would expect, these health and safety concerns are now also being extended to today's increasing number of wireless data networking services and applications. Ricochet, a subscriber -based wireless data communications service offered by Metricom, Inc., is one of the most prominent emerging networks that fits this description. All studies and testing to date conclude that Metricom's network poletop radios are substantially below the limits set by current RF emission standards, providing users with safe wireless data communications solutions. Today's and Tomorrow's Standards Among others, the Food and Drug- Admin- istration (FDA), the Federal Communications Commission (FCC) and the Enviromental Protection Agency (EPA) regularly give their attention to RF emission issues. Today, reports are inconclusive that wireless radio frequencies pose significant health risks to users. Meanwhile, the industry continues to observe the current ANSI and IEEE C95.1 RF exposure standards, first developed in 1982 and adopted by the FCC in 1985. The FCC considers low -power devices to be safe under the current standard, which was revised to reflect more stringent controls. [FORM OF SURETY BOND] Bond Number: SURETY BOND KNOW ALL MEN BY THESE PRESENTS: That METRICOM, INC. as Principal, and incorporated under the laws of the State of and authorized to execute bonds and undertakings as sole surety, are held and firmly bound unto , as Obligee, in the sum of ($ ); for the payment thereof, well truly to be made, said Principal and Surety bind themselves, their administrators, successors and assigns, jointly and severally, firmly by these presents. The condition of the foregoing obligation is such that: WHEREAS, the above bounden Principal is about to enter into a certain agreement with the Obligee for the following: the award of which said agreement was made to the Principal by the Obligee, on NOW THEREFORE, if the Principal shall well, truly and faithfully perform its duties, all the undertakings, covenants, terms, conditions, and provisions of said agreement during the original term thereof, and any extensions thereof which may be granted by the Obligee, with or without notice to the Surety, and if he shall satisfy all claims and demands incurred under such agreement, and shall fully indemnify and save harmless the Obligee from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the Obligee all outlay and expenses which the Obligee may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED, FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive 0 notice of any such change, extension of time, alteration or addition to the terms of the agreement or to the work or to the specifications. PROVIDED, HOWEVER, this bond is issued subject to the following express conditions: 1. This bond shall be deemed continuous in form and shall remain in full force and effect until canceled under Section , after which all liability ceases except as to any liability incurred or accrued prior to the date of such cancellation. 2. The aggregate liability of the Surety hereunder on all claims whatsoever shall not exceed the penal sum of this bond in any event. 3. The surety reserves the right to withdraw as surety from this bond, except as to any liability incurred or accrued, and may do so upon giving the Obligee sixty (60) days written notice. SIGNED AND SEALED this day of '19 PRINCIPAL SURETY 0 Title: 0 (Affix Corporate Seals) (Type Company Name) By: Title: Address: Telephone: (Attach Acknowledgments of both Principal and Surety signatures) 0 AGENDA ITEM NO. 6 • CITY OF NEWPORT BEACH Office of the City Manager March 10, 1997 TO: Honorable Mayor and Members of the City Council FROM: Kevin J. Murphy, City Manager SUBJECT: CORRECTION TO PAGE 9 OF AGREEMENT WITH METRICOM This agenda item includes a License Agreement between the City and Metricom, Inc. The format of the agreement was initially offered by Metricom as a standard format which they have utilized in other communities. Our City Attorney's Office utilized this format to craft an agreement specifically for Newport Beach. • One of the elements of their standard agreement, which was identified for removal from the draft agreement provided to our office and subsequently removed by the City Attorney's Office, was Section 4.5 on Page 9 of the material distributed to the City Council with your packets which refers to a future potential of a Utility Users' Tax. Unfortunately, the City Council didn't receive the corrected version which is attached for page 9 and deleting the section discussing a potential utility users' tax. In reviewing and acting upon this agreement you should utilize the attached version of page 9. Attachment 0 4.4 Reimbursement of City's Expenses. Metricom shall reimburse the City at City's standard rates for all reasonable expenses relating . to the preparation, issuance, and implementation of this Agreement, promptly upon receipt of bills, paid invoices, and such other documentation as Metricom shall reasonably require. The reimbursement provided for in this Section shall not replace or excuse Metricom from the payment of any applicable City permit fee for work undertaken in connection with this Agreement. 4.5 Most - Favored Nation Clause. Should Metricom after the parties' execution and delivery of this Agreement enter into a similar agreement with another municipality of the same size or smaller than the City in the Los Angeles Metropolitan Statistical Area which agreement contains financial benefits for such municipality which are substantially superior to those in this Agreement City shall have the right to request that Metricom modify this Agreement to incorporate the same or substantially similar superior benefits. 5. REMOVAL AND RELOCATION OF RADIOS. Metricom understands and acknowledges that City may require Metricom to relocate one or more of its Radios, and Metricom shall at City's direction relocate such Radios at Metricom's sole cost and expense, whenever City reasonably determines that the relocation is needed for any of the following purposes: (a) to facilitate or accommodate the construction, completion, repair, relocation, or maintenance of a City project; (b) because the Radio is interfering • with or adversely affecting proper operation of City light poles, traffic signals, or other City facilities; or (c) to protect or preserve the public health, safety, or welfare. If Metricom shall fail to relocate any Radios as requested by the City in accordance with the foregoing provision, City shall be entitled to relocate the Radios at Metricom's sole cost and expense, without further notice to Metricom. 5.1 Metricom Desires Relocation. In the event Metricom desires to relocate any Radios from one City -owned pole or other property to another City-owned pole or other property, Metricom shall so advise City. City will use its best efforts to accommodate Metricom by making another functionally equivalent City -owned pole or other property available for use in accordance with and subject to the terms and conditions of this Agreement. 9 • 1�.. .. ......... . .. . ... .. A 20RD r N PRODUCER 09/04/97 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Woodruff -Sawyer & Co. 220 Bush Street ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. 7th Floor COMPANIES AFFORDING COVERAGE San Francisco, CA 94104 COMPANY A Chubb/Vigilant Ins. Co. INSURED Metricont Inc. COMPANY B Chubb/Federal Ins. Co. Metricom DC, LLC 980 University Avenue COMPANY C Northbrook Nat'l Ins.Co. Los Gatos, CA 95030-2375 I G3 COMPANY D ------- — --------- w­.­02 IX is- A THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. CO LTR "PEOFINSUMNICE POLICY NUMBER POLICY EFFEC77VE DATE (MWDDNY) POLICY EXPIRATION DATE (MWDDIYY) LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY 35291948 04/01N6 09/30/97 GENERAL AGGREGATE $ 1,000,000 X PRODUCTS - COMPIOP AGO $ 1,000,000 I CLAIMS MADE Fx_1OCCUA PERSONAL & ADV INJURY $ 1.0m.00 EACH OCCURRENCE $ 1,000,000 OWNER'S&CONTRACTOR'S PROT FIRE DAMAGE (Any one fire) $ 1100000 MED EXP (Any we person) $ 10,000 B AUTOMOBILE LIABILITY ANY AUTO 73164541 04/01/96 09/30/97 COMBINED SINGLE LIMIT $ 1,000000 BODILY INJURY (Per person) $ ALL OWNED AUTOS SCHEDULED AUTOS X BODILY INJURY (Per.wident) $ HIRED AUTOS NON-OWNED AUTOS PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $ OTHER THAN AUTO ONLY: ANY AUTO EACH ACCIDENT $ I AGGREGATE $ B EXCESS LIABILITY UMBRELLA FORM 79072375 04/01/96 09/30/97 EACH OCCURRENCE $ 1,000 ,o00 AGGREGATE $ 1100 �No $ OTHER THAN UMBRELLA FORM C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY 88306492 09/30/96 09/30/97 H_ I ACRY LIMITST70EPRt EL EACH ACCIDENT $ l'OH.000 EL DISEASE - POLICY LIMIT 11000,000 THE PROPRIETOR) INCL PARTNERS(EXECUTIVE '— OFFICERS ARE, EXCL EL DISEASE -EA EMPLOYEE S OTHER DESCRIPTION OF OPEMTIONSILOCAMONS/VEHICLESISPECIAL ITEMS City of Newport Beach is named as additional insured per forms #40020004 & #160233. tNlE it] 14 _pp� Nm-... ...... l lS 100-0 ICa A SHOULD ANY OF WE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE WE City of Newport Beach EXPIRATION DATE WEREOF, WE ISSUING COMPANY WILL WEEIMMKIFICIDD MAIL Attn: Kevin Murphy, City Mgr. 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, 3300 Newport Beach Boulevard Newport Beach, CA 92658 YE, �-FM P M4 10 1 ON N IBM 2 go - �1 E.&IMLOWN&V AUTHORIZED REPRE , 17TATIVE . L Commercial Insurance Coverage Amendment effective 4/1/97 WHO IS INSURED: THE WHO IS INSURED PROVISION IS AMENDED TO INCLUDE AS AN ADDITIONAL INSURED THE PERSON OR ORGANIZATION DESIGNATED BELOW, INCLUDING ELECTED OR APPOINTED MEMBERS, OFFICERS AND EMPLOYEES, BUT ONLY WITH RESPECT TO THE COMMERCIAL GENERAL LIABILITY PROVIDED. BY THIS POLICY AND ARISING OUT OF THE OPERATIONS OF THE NAND INSURED IN CONNECTION WITH THE AGREEMENT FOR WORK PERFORMED BETWEEN THE NAMED INSURED AND THE PERSON OR ORGANIZATION DESIGNATED BELOW. ANY MUNICIPALITY REQUIRED TO BE NAMED PROVIDED SUCH CONTRACT OR AGREEMENT IS AND ONLY AS RESPECTS OPERATIONS OF OR A h terms .iuth.r¢ed Rep. m WLNe Named Insured: /act v:3/24/97.1 Page 1 of 1 Funn 40- 02.0004 )Ed. 9 -84) BY ANY CONTRACT OR ASREEMENT, EXECUTED PRIOR TO ANY LOSS, ON BEHALF OF THE NAMED INSURED. and conditions remain unchanged. METRICOM, INC. PoLcy Number: M9 19 413 Producer: WOODRUFF- SAWYER 6 CO. SAN FRANCISCO, CA ic cHUeB CTHIS ENDOR&ENT CHANGES THE POLICY. PLED READ IT CAREFULLY. c►ruBs This endorsement changes the policy effective on the inception date of the policy unless a different date is indicated below. (Tile following ne9d be completed only when this endorsement is issued subsequent to preparetion of the policy.) This endorsement, effective on 04/01/97 at 12:01 A.M. standard time, forms a part of (DATE) policy No. 7316 45 41 of the FEDERAL INSURAN(�E � ( AME CD INSURANCE COMPANY) issued to: METRICOM, INC. Producer: WOODRUFF- SAWYER b CO. SAN FRANCISCO, CA WHO IS INSURED: THE WHO IS INSURED PROVISION IS AMENDED TO INCLUDE AS AN ADDITIONAL INSURED THE PERSON OR ORGANIZATION DESIGNATED BELOW, INCLUDING ELECTED OR APPOINTED MEMBERS, OFFICERS AND EMPLOYEES, BUT ONLY WITH RESPECT TO THE COMMERCIAL AUTO LIABILITY PROVIDED BY THIS POLICY AND ARISING OUT OF THE OPERATIONS OF THE NAMED INSURED IN CONNECTION WITH THE AGREEMENT FOR WORK PERFORMED BETWEEN THE NAMED INSURED AND THE PERSON OR ORGANIZATION DESIGNATED BELOW. IT IS FURTHER AGREED, THIS INSURANCE IS PRIMARY OVER ANY OTHER COLLECTIBLE INSURANCE ONLY AS RESPECTS THE OPERATION OF THE NAMED INSURED. ANY MUNICIPALITY REQUIRED TO BE NAMED BY ANY CONTRACT OR AGREEMENT, PROVIDED SUCH CONTRACT OR AGREEMENT IS EXECUTED PRIOR TO ANY LOSS, AND ONLY AS RESPECTS OPERATIONS OF OR ON BEHALF OF THE NAMED INSURED. 06/30/97.01 /EEC All Other Terms and Conditions Remain Unchanged C4 1 Authorized Representative Farm 1642—M / 9 Pert (Ed. 4 78) • 4f.r